METFORD & FADDIN (No.4)

[2018] FCCA 3960

FEDERAL CIRCUIT COURT OF AUSTRALIA

METFORD & FADDIN (No.4) [2018] FCCA 3960

Catchwords:
FAMILY LAW – Children – failure to comply with order.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 69ZR

Applicant: MR METFORD

Respondent: MS FADDIN

File Number: BRC 9993 of 2017

Judgment of: Judge Cassidy

Hearing date: 17 July 2018

Date of Last Submission: 17 July 2018

Delivered at: Hervey Bay

Delivered on: 18 July 2018

REPRESENTATION

For the Applicant: Self-represented

Solicitors for the Respondent: Baker O'Brien & Toll

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the application be adjourned to 24 August 2018 at 9:45am for final hearing (with an estimated hearing time of one (1) day) in the Federal Circuit Court of Australia sitting at Brisbane.

2. That in the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been reduced on the basis of financial hardship, the party responsible for the payment of the fees or any of them, pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

3. That each party file and serve on each other party no later than 4:00pm on 17 August 2018:

   (a)One updating affidavit setting out any further evidence in chief including evidence in relation to costs; and

   (b)One affidavit of each witness intended to be relied upon at trial.

4. That each party file and serve on each other party no later than 4:00pm on 17 August 2018, a case outline setting out:

   (a)A precise minute of the final orders sought;

   (b)A relevant chronology;

   (c)A list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial; and

   (d)A statement of evidence which they say supports the principles contained in section 60CC of the Family Law Act 1975.

5. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.

6. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 4:00pm on 10 August 2018. In the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

7. That commencing Thursday 26 July 2018 and during the school term the children shall spend time and communicate with the father every second week from the conclusion of school Thursday until the commencement of school Tuesday, and if Tuesday is a pupil free day or public holiday then changeovers shall occur at Location D, Town K at 8:00am.

8. That for the purposes of school holidays changeover, changeovers occur at 3:00pm at Location D, Town K.

9. That the costs sought by the Applicant fixed in the sum of $4,682 be reserved to the trial.

NOTATION:

A.That both parties will be providing Ms H with further material to read and consider, and it is requested that the family report writer read and consider that material prior to the hearing on 24 August 2018.

B.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Metford & Faddin (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HERVEY BAY

BRC 9993 of 2017

MR METFORD

Applicant

And

MS FADDIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a matter where I have been asked to decide some parenting arrangements for four young children. The children are [W], born … 2006 (“[W]”), [X], born … 2007 (“[X]”), [Y], born … 2009 (“[Y]”), and [X], born … 2011 (“[Z]”). Collectively I will refer to them as “the children”.

2. The matter was listed before me because the mother filed an Application in a Case as the children had not, on five occasions, been returned to her care, pursuant to Orders made by Judge Coates and varied on 26 August 2013, by consent.

3. What the mother is seeking is that the Orders made by Judge Coates on 14 February 2013 and varied 26 August 2013, be suspended for a period of two weeks. That suspension would commence from the date of these orders. The mother also seeks that until further order, during the school term the children spend time with the father - following the suspension period - every second fortnight from the conclusion of school on Thursday until the commencement of school on Tuesday morning. If that Tuesday is a pupil free day or a holiday, then the changeover is to occur at 8:00am at Location D. For the purposes of school holidays, changeovers are occur at 3:00pm at Location D, Town K.  The mother is also seeking costs fixed in the sum of $4682. 

4. The father’s position is that he wishes that Order 4 of Judge Coates’ Orders, made 14 February 2013 as amended by consent, be suspended.  The father wants the children, until further order, to spend time with the father in week 2 of the two week cycle. That time being from 3:00pm Thursday until 8:00am Monday, which would be an additional night.

5. The father’s proposed orders continue that for the purposes of the preceding paragraph, all changeovers occurring during the school term take place at the children’s school. In the event changeovers fall on a public holiday then changeovers defer to 8:00am the following day, excepting when the public holiday should fall on a Friday in week 1 of the two week cycle. In that case the changeover will occur at 3:00pm on the preceding Thursday, with the changeover location outside of school to occur at Location L, Town K, unless otherwise agreed by the parties. The father also wanted Ms H, the family report writer, to be given an opportunity to read documents, including the Applicant father’s material that he believes she did not receive. The father wants no orders as to costs.

Background

1. This matter has had a long and chequered history before the Court unfortunately. The matter came before me in 2017 with an Application in a Case brought by the mother to summarily dismiss the father’s Application, which he filed to vary the Orders made in 2013. I entertained the father’s Application and dismissed the summary dismissal application and ordered a family report to be prepared by Ms H.

2. The father was born in 1973.  The mother was born in 1976.  They commenced living together in 2003 and married in 2006. The parties litigated, with the assistance of lawyers, where the children should spend time in 2013, and after an appeal, on 26 August 2013 they settled into an arrangement. That arrangement comprised the week 1 and week 2 schedule of two nights and three nights, with the mother having sole parental responsibility for the children.  In terms of what I have been asked to decide today, the background facts to that are quite simple.  On five occasions, the father has elected not to return the children to the mother, as required in the Orders.  The mother indicated that she had decided not to file a contravention but rather an Application in a Case to try and resolve the matter. 

Discussion

1. I note that the father admitted that he had not returned the children. The father’s reasoning is, as I understood his Affidavit, the children did not want to be returned at that time and there was inconvenience about returning them on some of those occasions to the changeover point that has been nominated. I note that changeover point has been the place where changeovers have occurred since 2013. The father has argued that this changeover point is no longer convenient to him because he has moved house.

2. With respect to the concern I have about the matter, failure to comply with court orders is very serious. This Court spends a lot of time listening to the evidence of the parties and coming to a decision and that is not done lightly. It is therefore expected that people will comply with the orders made and if they are unhappy with the orders, then they can bring an application. If there is a basis for reopening the matter, the Court will do just that. That is in fact what has been offered to the father on this occasion. The father has elected not to wait for the Court’s decision.

3. I do not make any adverse findings at this stage but I note that there has been this difficulty. In coming to a decision today, I have to look at the children’s views. That is not something that I can really use easily in this matter. I have to look at the effect of any change in the children’s circumstances. Of all of the matters that are listed in section 60CC of the Family Law Act 1975 (Cth) (“the Act”), that is the one that is the most significant today. That is because what the mother is seeking is to move the arrangement from a five-night block that is split over the two weeks to a five-night block that runs for five nights in a row.

4. The father is looking to extend the two block periods by one overnight from the Sunday night to the Monday night.  I note that I have set down a trial to be heard in Brisbane on 24 August 2018. I will finally determine the matter in August because I am very concerned about the level of dispute that has arisen in this matter and what impact it might be having on the children. 

5. Despite the fact that the final hearing is only six weeks away, I am satisfied that I should look at changing the Orders today. I am satisfied that I should do that because the father is seeking a seven-day block, the mother is seeking a five-day block, so if I make an order for a five-day block today, I am not really doing anything that the parties are not looking to do at the trial. Further, if I make the final decision at the trial to increase the block from five to seven days, it will just be an incremental increase. 

6. Accordingly, I am satisfied that while it is a change in the children’s circumstances, it is not one that is contrary to their best interests to be made only six weeks prior to the trial. I am fortified in coming to that decision by noting that s69ZR of the Act provides :

   “Power to make determinations, findings and orders at any stage of proceedings

   (1)  If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

   (a)  make a finding of fact in relation to the proceedings;

   (b)  determine a matter arising out of the proceedings;

(c)  make an order in relation to an issue arising out of the proceedings.

Note:          For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.

(2)  Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.

(3)  To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.”

1. I particularly note subsection (3) of that section.

2. So while it is a change in the children’s circumstances, it is one that will be happening one way or another at the trial and I consider that if I make the order today, it will avoid any further breaches of the 2013 Orders. That is a very important consideration because this Court does not make orders lightly. 

3. I consider that it is terribly important that parties do comply with court orders, otherwise there is not much point in going to the expense and having the litigation.  Sadly, the litigation does affect children.  So if for no other reason, it is important to minimise the impact on children by complying with orders. 

4. The Order I will make therefore will be the order for the five nights.  I am not minded at this stage to provide the makeup time for the five nights that the mother has missed out on, but I will reserve that question to the trial and make a decision at that time. 

5. I will need to know whether it is this Thursday or next Thursday that is the Thursday that the children should start their block with their father.  I will make that inquiry once I have read the Orders onto the record. 

6. I will also leave the changeovers at Location D at Town K because that is where it has been since 2013, and I will better be able to understand that issue in the next few weeks when the matter comes before me again for final hearing. There will only be one changeover that I can see - if any one or two changeovers - if there is a pupil free day or a public holiday between now and when I do the trial in August 2018.

7. I will reserve the costs, fixed in the sum of $4682, to the final hearing. I consider I need to understand and know the financial position of the parties, as well as all of the other factors set out in section s117 of the Act. I would ask the parties to put into their trial affidavits evidence in relation to costs so that I can make that determination.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Associate: 

Date:  18 February 2019